Allen v. Evans

37 N.E. 571, 161 Mass. 485, 1894 Mass. LEXIS 224

Opinion

Allen, J.

The original owner of two adjoining lots built houses thereon with a party wall between them, and afterwards sold the two houses to different purchasers, imposing no obligation upon either purchaser in respect to the party wall. A predecessor in title of the plaintiff, being the owner of one of the lots, strengthened the foundation and built the party wall higher. The defendants, owning the adjoining lot, built their house higher, and used the wall so built by the plaintiff’s predecessor in title. After this had been done, the plaintiff bought his lot and now seeks to make the defendants pay for using the wall. There was no stipulation or agreement in any form that such payment should be made, and there is no implied contract to pay for such use of a party wall. The defendants had a right to use so much of the party wall as stood upon their own land in the manner in which they did use it, without paying anything for such use. Wilkins v. Jewett, 139 Mass. 29. Joy v. Boston Penny Savings Bank, 115 Mass. 60. Brooks v. Curtis, 50 N. Y. 639. The case is to be distinguished from those in which there was an agreement or stipulation for payment, like Maine v. Cumston, 98 Mass. 317; Standish v. Lawrence, 111 Mass. 111; and Richardson v. Tobey, 121 Mass. 457.

Judgment for the defendants affirmed.